16 January 2023

Judicial Impartiality in Indonesia Under Attack

How Parliament and President Are Impinging on the Constitutional Court and Its Effects on the Forthcoming Election

The independence of judicial power in Indonesia is in a precarious situation. Lately, the parliament haphazardly dismissed Constitutional Judge Aswanto, a parliament-proposed Constitutional Judge who oppositely reviewed and cancelled some of the parliament’s and president’s legislative products, including the controversial Omnibus Law on Job Creation. This situation was exacerbated through the inauguration of the parliament-proposed substitute, Constitutional Judge Guntur Hamzah, by President Widodo who could have refused to authorize this illegal act. Instead, President Widodo took part in the destruction of the Constitutional Court. The President’s weak commitment on democracy and supremacy of law is putting judicial independence in Indonesia in jeopardy, particularly facing the upcoming 2024 election. 

Parliament’s Hazardous Interference in the Constitutional Court’s Composition

Indonesia is one of many countries who have two apex judiciary institutions at the top of the judicial system, the Supreme Court (Mahkamah Agung) and the Constitutional Court (Mahkamah Konstitusi). The Constitution of Indonesia clearly emphasizes both courts as the judicial power holder, also guaranteeing their independence and impartiality. While the Supreme Court administers the general courts (public, private, military, religious, and administration law), the Constitutional Court acts as a political court with various powers. The Constitutional Court has the authority to try judicial review cases, presidential impeachments, disputes among state institutions, and disputes over electoral results. The Constitutional Court is the sole interpreter of Indonesia’s constitution.

The independent judiciary of the Constitutional Court is guaranteed by the constitution through several aspects, including the recruitment mechanism. The Constitutional Court consists of nine judges, each three of them are proposed by the Supreme Court, Parliament, and President, as an effort to assure the check and balances by the three branches of power. They are then inaugurated by the President of Indonesia. Constitutional Judges have a certain tenure and they are irreplaceable during their tenure.

In the beginning, the Constitutional Court was designed as a separate court from other branches as a response to the lack of judiciary independence amid the Soeharto era. Unfortunately, the parliament prefers to consider the judges their company directors: The parliament assumes the Constitutional Court as a company, itself being the shareholder. Thus, the recruitment mechanism has been perfunctorily interpreted to serve their political interest.

This logic is putting judiciary independence in jeopardy, if we analyse it with several approaches. By the statutory approach, there is no such legal framework, especially in the constitution, legitimizing the parliament or other institutions to lay off constitutional judges. To protect their independence, the judges have a fixed-term of office which can neither be curtailed nor extended. The constitutional judges could only be dismissed mid-term, if they committed a crime or ethical violation. In this case, the dismissal procedure is to be moved to the Ethical Council of Constitutional Court, where the judge concerned is given the opportunity to defend him/herself.

The fixed-term model is the consequence of the proposal mechanism. Oppositely, under the logic of appointment, the appointee may change judges at any time. A certain tenure can prevent judges from being fired midway through their term of office. The process of dismissing is only based on statutory regulations and these provisions are designed to ensure the independency of constitutional judges (Asshiddiqie, 2022). Hence, carelessly dismissing constitutional judges midway through their term could be considered unconstitutional regarding the proposed mechanism.

By the institutional approach, this unconstitutional action of parliament certainly affects the impartiality of the Constitutional Court, bringing the Parliament into a more powerful place, rather than other branches. By inaugurating the judge of parliament’s choice, Guntur Hamzah, President Widodo not only showed support, but participated in this attack on the rule of law.

This situation adds to a long list of attempts undermining the state’s commitment to judicial independence, particularly for the Constitutional Court. Previously, the Constitutional Court was deluded by a provision of Constitutional Court Law, which extended their terms of office. Moreover, the Chief of the Constitutional Court, Anwar Usman, became the President’s brother-of-law after marrying his sister whilst refusing to resign from his office. Despite undermining the Court’s dignity and dragging it into the vortex of political interest, those situations also enormously affected judicial impartiality in general.

These developments are illustrated by the Rule of Law Index released by the World Justice Project (2021), which shows a decrease of Indonesia’s ranking from 59 in 2020 to 68 in 2021, with an overall score of 0,52. It has several aspects as indicators, one of them the constraint of governmental power with a score of 0,67. Meanwhile, on the civil justice aspect that contains judicial impartiality, Indonesia was ranked 105 with a score of 0,45. This emphasizes how hard Indonesia must improve its commitment to the rule of law, particularly to judicial impartiality.

Family Affairs Leaving The Electoral Process at Risk

With an eye to the upcoming elections, this becomes even more necessary. Under the Indonesian constitution, the Constitutional Court is placed at the top of the electoral justice system, having the power to try electoral result dispute cases. Such procedure would involve political actors across the board: political parties, legislative candidates, presidential candidates, and local head candidates that have various political concerns. Their prominent power in the legislative and executive branches could considerably affect the Court’s decision on electoral disputes when the independence of the judiciary is mortgaged. It could also undermine the integrity of the electoral process.

Another situation that determines the role of the Constitutional Court in an election is the phenomenon of judicialization of politics. According to Alec Stone Sweet (2002), this phenomenon is understood as an intervention by constitutional judges in the legislative process, establishing limits on law-making behaviour, reconfiguring policy-making environments, and drafting a precise term of legislation.

Political judicialization, especially in the electoral process, has been giving power to the Constitutional Court for designing the electoral system in Indonesia through its judicial review authority. An extensive influence of the Constitutional Court on electoral regulation and design can be shown by a large number of judicial reviews on Indonesian electoral law, Law No. 7/2017 (92 cases) and local head election law, Law No. 10/2016 (42 cases) junto Law No. 8/2015 (39 cases).

Following from this, several changes regarding electoral design have been established through the judicial review authority of the Constitutional Court. One of them is the concurrent election format that makes Indonesia the world’s most complex election with five ballot papers in one national election. The latest is the design of the electoral justice system and the restoration of the authority for electoral district arrangement to the Indonesian Commission of Election.

Since the removal of Judge Aswanto, this judicial review function is crucial for the constitutional judges, putting them in a dilemma: If trying to improve the electoral provisions to guarantee free and fair elections, they will potentially get fired easily.

The family relationship between the Chief of the Constitutional Court, Anwar Usman, and President Widodo will also cause a conflict of interest in court, because of the weird presidential authority to be involved in the process of law-making, making the President a respondent beside parliament.

We can conclude that the electoral justice system is threatened after the political intervention in court. Moreover, the designing of the electoral system and management model which has been considered an essential component could be utilized for the interests of certain political groups. The electoral process in Indonesia would end up as a factor of democracy’s regression.

SUGGESTED CITATION  Adlan Hafiz, Kahfi: Judicial Impartiality in Indonesia Under Attack: How Parliament and President Are Impinging on the Constitutional Court and Its Effects on the Forthcoming Election, VerfBlog, 2023/1/16, https://verfassungsblog.de/judicial-impartiality-in-indonesia-under-attack/, DOI: 10.17176/20230117-001820-0.

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